https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1411

Ontumbo & 2 others v Republic (Criminal Appeal E022 of 2022) [2026] KECA 1411 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1411 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E022 of 2022 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 10, 2026 Between Erick Magwaro Ontumbo 1st Appellant Andrew Gerare Ontumbo 2nd Appellant Wycliff Nyamweya Bundi 3rd Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Kisii, (Wakiaga & Nagillah, JJ.) dated 11th December, 2015 in HCCRA No. 174 of 2012 Criminal Appeal 174 of 2012 ) Judgment 1.This is an appeal arising from the judgment of the High Court of Kenya at Kisii, (Wakiaga & Nagillah JJ), delivered on 11th December 2015, in HCCRA No. 174 of 2012. By that judgment, the High Court sitting as a first appellate court upheld the conviction of Erick Magwaro Ontumbo, Andrew Gerare Ontumbo, and Wycliffe Nyamweya Bundi, “the appellants”, by the trial court on 4 counts of robbery with violence and 3 counts of gang rape. They all also faced four alternative counts of handling stolen properties. The trial court rightly made no findings on the alternative counts having found the appellants guilty on the main counts. Upon conviction as aforesaid, the trial court sentenced the appellants to 30 years imprisonment on the main counts and directed that the sentences run concurrently. 2.The prosecution’s case was weaved around the following key witnesses; GGO, PW1, LMS, PW2, Daniel Bosire Momanyi, PW3, and Bryan Osoro Ogoro, PW4, who were the main victims in the four counts of robbery with violence. Of course, PW1 was the sole victim of gang rape counts. On the material night, PW1 was attacked by a group of men armed with crude weapons who broke into her house as she and members of her family being PW2 and PW3 were sleeping. They terrorized her demanding money and even threatened to cut her head if she did not cooperate. She confirmed that she was robbed of her various belongings and in the process, gang raped by all the appellants one after the other. She identified the appellants among them as the lantern lamp was on throughout the episode. They were as well not disguised at all. They also stayed in house for close to 4 hours and one of them even eat the supper left overs. A Medical officer produced the P3 form in respect of PW1, which indicated injuries consistent with both physical as well as sexual assault. The three other witnesses who were victims of the robberies in the other counts corroborated this evidence. 3.A police officer narrated how they received the information regarding the ongoing robbery at PW1’s house. They proceeded to the house but found that the robbers had already escaped. They successfully mounted a search for the robbers whom they came across standing along the road at Kijauri shopping centre. Upon searching their big bags that they were carrying; they recovered several items that had been robbed from PW1. Those items were positively identified by PW1 as well as the other victims of the robberies. The investigating officer, outlined the sequence of investigations leading to the arrest of the appellants, including the conduct of the police identification parade whereat 3 witnesses who were all victims of the violent robberies and witnesses to gang rape were able to pick out the appellants in that parade. The prosecution maintained that the evidence Marshalled that included direct testimony of the victims, corroborated by medical evidence and recovery of stolen property from the appellants, proved the offences preferred against them beyond reasonable doubt. 4.In their defence, they elected to say nothing. 5.The trial court after considering the evidence, found it credible and sufficient to found a conviction. Consequently, the appellants were convicted on all main counts and sentenced to 30 years’ imprisonment as already stated and with the sentences being ordered to run concurrently. 6.On appeal, the first appellate court upheld the conviction and appreciated that all the ingredients of robbery with violence as well as gang rape were proved; the appellants’ fair trial rights were not violated; and that however the sentence imposed by the trial court was unlawful as section 296(2) prescribes the mandatory death sentence. Accordingly, it corrected the illegal sentence by imposing the proper sentence which was death. 7.The appellants, being dissatisfied with the concurrent findings of the trial court and the first appellate Court, have now approached this Court by way of 2nd and perhaps last appeal. In their grounds of appeal, they fault the decisions of the two courts below on four broad fronts: they contend that the first appellate court erred in law in concluding that all the ingredients of the offence of robbery with violence had been established; holding that the offence of gang rape had been proved; failing to appreciate that the appellants had a constitutional right to legal representation and finally, that the enhancement of the sentence was uncalled for. 8.When the appeal came up for plenary hearing, the appellants who appeared on our virtual platform from Kibos Maximum Prison were represented by Ms. Yunus teaming up with Ms. Mawinda learned counsel, whereas Mr. Okeyo learned prosecution counsel appeared for the respondent. Both counsel opted to wholly rely on their respective written submissions that they had filed and exchanged. 9.Counsel for the appellants urged this Court to find that their convictions were unsafe, the trial fatally defective, and the first appellate court erred in upholding the conviction and enhancing the sentence. Counsel submitted that the first appellate court erred in concluding that all the ingredients of the offence of robbery with violence were proved. They relied on Oluoch v Republic [1985] KLR, which sets out the key elements of robbery with violence which must be proved, and argued that the prosecution’s evidence was contradictory and therefore failed to meet the threshold with regard to the ingredients of the offence. 10.On gang rape, counsel contended that the offence was not proved against the appellants. They pointed out that the medical evidence was inconclusive, the P3 form was filled two days after the incident, and no spermatozoa were detected. They argued that the conviction on these counts was therefore unsafe as it lacked forensic grounding. 11.Counsel further submitted that the appellants were denied their constitutional rights under Article 50(2)(g), (h), and (j) of the Constitution. They argued that the appellants were not informed of their right to legal representation, were denied state-funded counsel for an offence that carried a capital sentence; and were not supplied with witness statements in advance. They cited David Macharia Njoroge v Republic [2011] eKLR, Thomas Alugha Ndegwa v Republic [2016] eKLR, and Karisa Chengo & 2 Others v Republic [2015] eKLR, and stressed that substantial injustice resulted from lack of adherence to Article 50(2)(g), (h), and (j) of the Constitution. 12.Turning on identification, counsel submitted that the prevailing conditions at the scene of crime which was only lit by a lantern lamp were unsuitable for reliable identification and or recognition. They relied on R v Turnbull [1976], Wamunga v Republic [1989] KLR 424, and Francis Kariuki Njiru & 7 Others v Republic [2001] eKLR, in urging that the identification evidence was unsafe and susceptible to error given the circumstances. They also submitted that the identification parade was flawed, as some of the identifying witnesses had seen the appellants at the hospital prior to the parade. 13.Finally, on sentence, counsel submitted that the first appellate court erred in enhancing the sentence to death. They urged that the death penalty is unconstitutional, degrading, and contrary to Article 25(a) of the Constitution. They cited Katana Kitsao Nzingo v Republic and Richard Munene v Republic [2018] eKLR, in urging the Court to reconsider the sentence in light of the prevailing Judiciary Sentencing Guidelines. 14.Opposing the appeal, counsel for the respondent urged this Court to dismiss the appeal, maintaining that both the trial and the first appellate courts properly convicted the appellants and that the findings of both courts were sound in law. That the prosecution had discharged its burden of proof with regard to both counts of robbery with violence and gang rape. He emphasized that the witness’s testimonies were clear and consistent, and was corroborated by the recovery of stolen property from the appellants soon after the robbery and the medical evidence tendered. 15.On fair trial rights violations, counsel maintained that the appellants were accorded a fair trial. He submitted that they were duly informed of the charges and participated fully in the proceedings. He argued that the absence of state-funded counsel did not occasion substantial injustice, as the appellants were able to conduct their defence and no prejudice was demonstrated. On identification, counsel submitted that PW1 positively identified the appellants and that the identification parade was properly conducted. He argued that the prevailing conditions at the scene of crime did not undermine the reliability of the identification, and that the courts below were correct in accepting the evidence. 16.Turning on sentence, counsel submitted that the first appellate court was right to enhance the sentence to death, as section 296(2) of the Penal Code prescribes the mandatory death penalty for the offence of robbery with violence. He emphasized that the question of sentence with regard to offences of robbery with violence had already been settled by the Supreme Court, and therefore the appellants’ arguments on this point were without merit. 17.This is a second appeal and by dint of section 361 (1) (a) of the Criminal Procedure Code, only matters of law fall for our determination unless it is demonstrated that the two courts below in their judgments failed to consider matters they should have considered or looking at the entire case, their decisions on such matters of fact were plainly wrong in which case this Court will consider such omission or action as matters of law. Similarly, a second appellate court will not as a general rule interfere with concurrent findings of fact of the two courts below unless they are shown not to have been based on evidence. See Kaingo v R [1982] KLR 214 and David Njoroge Macharia v R, [2011] eKLR. 18.Having considered the record, the submissions by both counsel, the cited authorities and the applicable law, the issues that fall for our determination in this appeal are whether the: offences of robbery with violence and gang rape were proved as required; the appellants’ constitutional right to a fair trial under Article 50(2)(g) and (h), was violated; identification evidence relied upon by the two courts below was reliable and properly admitted; and finally, whether the enhancement of sentence was justified in law. 19.It is trite law that in interrogating the offence of robbery with violence, the Court must, as a matter of statutory construction, first advert to section 295 of the Penal code which lays down the foundational definition of robbery as follows:“Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of the felony termed robbery.” 20.The jurisprudence of this Court in Moneni Ngumbao Mangi v Republic, Johana Ndungu v Republic, Oluoch v Republic [1985] KLR 549, and Ganzi & 2 Others v Republic [2005] 1 KLR 52 makes it clear that robbery with violence cannot be proved in isolation of section 295. In ordinary parlance, there must be a robbery which is committed by the suspects acting jointly, who are armed with dangerous weapons and visit violence on the victim(s) in the process. 21.Applying these principles to the set of facts in this appeal, the victim’s testified that they were attacked at night by several men armed with crude weapons and robbed of several items particularized in the several counts of robbery with violence. In the process they visited violence on them including gang rape on one of them. This evidence was corroborated in material particulars by the other witnesses who testified on the incident. The evidence was further corroborated by medical findings of injuries and by the recovery of stolen property from the appellants. The appellants acted jointly, were armed, and used violence against their victims. These circumstances fall squarely within the ambit of section 296(2) of the Penal Code. The trial and the first appellate court therefore correctly found that the offence of robbery with violence had been proved beyond reasonable doubt in the circumstances. 22.As to the second issue, Gang rape is provided for under section 10 of the Sexual Offences Act which states:“Any person who commits the offence of rape or defilement under this Act in association with another or others, or any person who, with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less than fifteen years but which may be enhanced to imprisonment for life.” 23.The essential element of gang rape is rape committed in association with two or more persons. The ingredients of gang rape which the prosecution must prove are set out in section 10 of the Sexual Offences Act, which provides that:“Any person who commits the offence of rape or defilement under this Act in association with another or others, or any other person who, with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less than fifteen years but which may be enhanced to imprisonment for life. 24.The evidence tendered in support of the count was direct and cogent.PW1 gave clear and credible testimony that each of the assailants penetrated her vagina with their penis in turns, each lasting more than an hour. The act of penetration was effected through force and under threat of violence, as they were armed with pangas and acted in circumstances that placed her in fear for her dear life. Her account was materially corroborated by her son and niece who witnessed the ordeal, and the medical officer whose evidence confirmed penetration and injuries consistent with sexual assault. PW1 confirmed that the circumstances of the attack were such that the assailants acting jointly, armed and violent, created an environment of fear that excluded the possibility of any consent from her. 25.The appellants contended that the medical evidence was inconclusive, pointing to the delay in filling the P3 form and the absence of spermatozoa. However, this Court in Fappyton Mutuku Ngui v Republic [2012] eKLR made it clear that the absence of spermatozoa does not negate proof of rape if penetration is otherwise established. Likewise, in Republic v Oyier [1985] KLR, it was emphasized that the credible testimony of a complainant, if accepted by the court, is sufficient to sustain a conviction even without forensic corroboration. What if the appellants used condoms in sexually violating her! Both the trial court and the High Court found PW1’s testimony truthful and reliable and we find nothing untoward to merit our interference with the concurrent findings of the two courts below on the issue. 26.On the alleged violations of constitutional rights to a fair trial, Article 50(2)(g) and (h) of the Constitution guarantees every accused person the right to choose, and be represented by, an advocate, and to have an advocate assigned to him at State expense if substantial injustice would otherwise result. The appellants argued that they were denied legal representation for an offence which carried a death sentence, and that they were not supplied with witness statements in advance. 27.This Court has consistently held that the right to representation is fundamental, but not absolute right. In David Macharia Njoroge v Republic [2011] eKLR, the Court recognized that State-funded counsel is required only where substantial injustice would result. The Supreme Court in Karisa Chengo & 2 Others v Republic [2017] eKLR, reiterated that the right is context-specific and must be assessed against prejudice suffered by the accused. In the instant appeal, the record demonstrates that the appellants were duly informed of the charges, provided with the necessary prosecution evidence in advance and thereafter participated actively in the proceedings, and tendered sworn testimony in their defence. They did not demonstrate that lack of counsel occasioned prejudice or substantial injustice to them. Nor did they request to be provided with counsel and the trial court denied them the request. We are therefore satisfied that the appellants were accorded a fair trial within the meaning of Article 50 of the Constitution. 28.Turning on identification, the law is settled. In Wamunga v Republic [1989] KLR 424, this Court cautioned against the dangers of relying on visual identification made under difficult circumstances, noting that mistaken identity has been the cause of many wrongful convictions. The English case, R v Turnbull [1976] 3 All ER 549, which has been adopted in this country through several decisions of this Court including Wamunga v Republic aforesaid, requires courts to carefully scrutinize identification evidence, by considering the lighting conditions, duration of observation, and prior familiarity with the accused amongst other considerations. 29.In the present appeal, victims testified that they were able to identify the appellants during the attack which occurred at night under the illumination of a lantern lamp. The appellants were all not disguised at all as to make their identification difficult, stayed in the house for over four hours, talked to PW1 from close quarters threatening to cut her head, and were even more closer as they gang raped her. Besides, PW1's son even recognized the 2nd appellant as a person who worked at the Omangas, a nearby homestead. The trial court evaluated the conditions obtaining at the scene of crime and found them conducive for positive identification and or recognition. The identification evidence was thus credible, and the first appellate court affirmed this finding. 30.The appellants argued that PW1 had seen them at the hospital prior to the parade. The record shows that indeed this assertion was true. Her own testimony confirms this fact as well. Therefore, she should not have been called upon to participate in the police identification parade. However, even if her testimony on this aspect is disregarded, there other witnesses who were also victims of the robberies and went through the ordeal, who were able to pick them out in the identification parade. Besides, the appellants at the conclusion of the parades thereof duly signed the parade forms confirming that they were satisfied with the manner in which the police identification parade was conducted. They cannot now be heard to impugn the manner the parades were conducted. We are in the premises satisfied that the parades were conducted in accordance with established procedure. We are further satisfied that the identification evidence was reliable and properly admitted. The concurrent findings of the trial and the first appellate courts on this aspect cannot be faulted therefor. 31.On the lawfulness and constitutionality of the enhanced sentence, section 296(2) of the Penal Code prescribes death as the ultimate penalty for robbery with violence. The Supreme Court in Francis Karioko Muruatetu v Republic [2017] eKLR declared the mandatory nature of the death sentence unconstitutional, but it did not wholly abolish it. The Court clarified that sentencing discretion must be exercised, but where circumstances are grave, the death penalty remains lawful. Following however the widespread confusion regarding whether the dictum was also applicable to other Offences that attract mandatory death sentences, the Supreme Court was compelled to issue a clarification in 2021 stating that the earlier Muruatetu decision was strictly limited to murder cases and did not automatically invalidate the mandatory or minimum sentences for other offences, including robbery with violence. See Muruatetu & Another v Republic, Katiba Institute & 4 Others (Amicus Curiae), [2021] KESC 31(KLR). 32.Following this clarification, it becomes apparent that the substitution by the first appellate court of the sentence of death in place of that of 30 years imposed by the trial court was plainly legal. After all, the appellants had been warned as required by the first appellate court that if they pursued the appeal and lost, the court would substitute the illegal sentence by the trial court with the legal sentence. Despite the warning, the appellants opted to pursue the appeal nonetheless and the consequences of that ill-advised move is there for all to see. We do not discern any procedural lapses by the first appellate court that would invite our intervention with regard to the enhanced sentence. 33.Having exhaustively examined the record, we are satisfied that the main offences proffered were all proved beyond reasonable doubt; the appellants were accorded a fair trial; the identification evidence was reliable; and the enhancement of sentence to death was lawful and justified in the circumstances. 34.Ultimately, the appeal is devoid of merit and is dismissed in its entirety. DATED AND DELIVERED AT KISUMU THIS 10TH DAY OF JULY, 2026.ASIKE-MAKHANDIA.......................JUDGE OF APPEALE.C. MWITA.......................JUDGE OF APPEALB. ONGAYA.......................JUDGE OF APPEALcertify that this is a true copy of the originalDEPUTY REGISTRAR